Bid Protest Weekly
Rotech Healthcare, Inc.
August 17, 2016
Written by Sharon O. Steele, Chair of Government Contracts Practice Group
Past performance and unequal discussions
Link: GAO Bid Protest – Rotech
Protester: Rotech Healthcare, Inc.
Agency: Department of Veteran Affairs
Disposition: Protest Sustained.
Rotech Healthcare, Inc. (Rotech), of Orlando, Florida, the incumbent contractor, protests the award of contracts by the Department of Veterans Affairs (VA) to Lincare, Inc. (Lincare), of Clearwater, Florida, under request for proposals (RFP) No. VA258-15-R-0092, for home oxygen and durable medical equipment with incidental services. Rotech argues that VA improperly evaluated proposals, made an improper source selection decision, and held unequal discussions. Rotech’s protest of the Department of Veteran Affairs contract award to Lincare Inc. was sustained.
Rotech challenges the agency’s assignment of a rating of good to Lincare’s proposal under the past performance evaluation factor, arguing that the record fails to establish that the rating was based on Lincare’s performance on contracts similar in size, scope, and complexity to the effort here, as required by the RFP. GAO agreed with Rotech.
GAO maintained that the record did not demonstrate that the VA had a reasonable basis for assigning Lincare’s proposal a past performance rating of ‘Good’ based on Lincare’s performance on contracts similar in size to the solicited effort. There was no evidence in the contemporaneous record that the evaluators considered whether Lincare’s contracts were similar in size to the contract to be awarded; moreover, the agency received completed past performance surveys on only two of Lincare’s contracts, neither of which appeared to have been comparable in size (in terms of number of patients or annual contract value) to the contract here. Furthermore, there is no information in the record establishing that the contract on which one evaluator had personal experience was comparable in size, scope, and/or complexity to the solicited effort. Under these circumstances, the GAO was unable to conclude that the VA had a reasonable basis for its rating of Lincare’s past performance.
Rotech also asserts that the agency conducted additional discussions with Lincare that favored Lincare. Rotech asserts that when the VA permitted Lincare to revise its proposal, it must have provided all competitive range offerors with the same opportunity. Rotech asserts that “extending the invitation to Lincare alone was improper under the FAR.” Rotech concludes that “the favorable treatment of Lincare thus was improper and prejudicial.
While the VA maintained that the contracting officer did not intentionally disclose beneficial information to one party and withhold it from another; the written communication with Lincare was solely for the purposes of pre-award price confirmation, which was only necessary due to the amount of time between the proposal and the anticipated award date; and there was no clear impropriety or obvious prejudice to Rotech in the written communication with Lincare. The GAO disagreed.
GAO recommended that VA request revised price proposals from Rotech and Lincare, reevaluate and document the evaluation of Lincare’s past performance proposal, and make a new source selection decision consistent with this decision. GAO also recommended that Rotech be reimbursed its costs of filing and pursuing its protest, including reasonable attorneys’ fees
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Written by Sharon O. Steele, Chair of the Government Contracts Practice Group